Fields v. Berry

• Decision Date: 17 February 1977
• Docket Number: 9790,Nos. 9788,s. 9788
• Citation: 549 S.W.2d 122
• Parties: Exie Belle FIELDS and Dave Fields, Plaintiffs-Respondents, v. Opal BERRY, Defendant and Third-Party Plaintiff, Appellant-Respondent, v. FRANK SCOTT, INC., Third-Party Defendant-Appellant, and Chrysler Corporation, Third-Party Defendant.
• Court: Missouri Court of Appeals

Page 122

549 S.W.2d 122

Exie Belle FIELDS and Dave Fields, Plaintiffs-Respondents, v. Opal BERRY, Defendant and Third-Party Plaintiff, Appellant-Respondent, v. FRANK SCOTT, INC., Third-Party Defendant-Appellant, and Chrysler Corporation, Third-Party Defendant.

Nos. 9788, 9790.

Missouri Court of Appeals, Springfield District.

Feb. 17, 1977.

Opinion Modified on Court's Own Motion.

Motions for Rehearing or Transfer Denied March 29, 1977.

Application to Transfer Denied May 10, 1977.

L. R. Buehner, Buehner & Buehner, Joplin, for appellant-respondent opal berry.

William H. Burden, Jr., Joplin, for respondents Fields.

Jon Dermott, Ronald E. Mitchell, Blanchard, Van Fleet, Martin, Robertson & Dermott, Joplin, for appellant Frank Scott, Inc.

Before STONE, P. J., and HOGAN and TITUS, JJ.

HOGAN, Judge.

These cases arose out of an automobile accident which occurred in Newton County on June 3, 1966. Pleading their cause under the res ipsa loquitur doctrine, plaintiffs Exie Belle and Dave Fields sought to recover damages from defendant Berry 1) for personal injuries sustained by plaintiff Exie Belle, and 2) for loss of consortium sustained by plaintiff Dave Fields. Plaintiffs' amended petition was filed on August 24, 1967. On March 13, 1970, with leave of court, defendant Berry impleaded third-party defendants Scott and Chrysler pursuant to Rule 52.10 (now 52.11), V.A.M.R. The theory of the third-party petition was that third-party defendants Scott and Chrysler were or might be liable to defendant Berry as supplier and manufacturer, respectively, of a defectively manufactured product, specifically, Berry's automobile. The third-party defendants answered separately; third-party defendant Scott filed a cross-claim against Chrysler and Chrysler filed an answer thereto. All the issues tendered by the pleadings were tried together before a jury on April 23, 1974, and the jury resolved those issues by finding 1) for plaintiff Exie Belle Fields and against defendant Berry in the sum of $10,000; 2) for plaintiff Dave Fields and against defendant Berry in the amount of $500; 3) for third-party plaintiff Berry and against third-party defendant Scott in the amount of $10,500; 4) for third-party defendant Chrysler and against third-party plaintiff Berry; 5) for third-party defendant Chrysler on the cross-claim interposed by third-party defendant Scott. Defendant Berry appeals from the judgment rendered against her on the main claim; third-party defendant Scott appeals from the judgment rendered against it on the third-party claim. We ordered the appeals consolidated for argument and shall consider them together.

Capsulated, the facts are that the accident happened between 8:30 and 9:00 p.m. on Highway 71 between Neosho and Joplin. Plaintiff Exie Belle Fields, defendant Berry and one Naomi Brown had been to a revival meeting at Neosho and were returning to Joplin where they lived. Defendant Berry was driving; Mrs. Brown was seated to the driver's right in the front seat and plaintiff Exie Belle was sitting in the rear seat behind Mrs. Brown. Exie Belle testified that the weather had been warm and fair "that day", that there had been no rain, and that the accident occurred "about dusk".

Highway 71, at the scene of the casualty, is 22 feet wide from curb to curb, with a 12-foot shoulder on either side. The road runs "sort of (at) an angle", according to the investigating officer, but was described for convenience (at counsel's suggestion) as running north and south. The place of the accident was, again according to the investigating officer, "approximately one mile or so" "towards Joplin", i. e., north of the Deem Hatfield Grocery Store. From the Hatfield Grocery Store north to the place of the accident, Highway 71 curves about three or four times, with some "straight-a-ways" in between.

As we follow the sequence of events, defendant Berry "rounded" one of the several curves and was driving north when she turned aside to her right, either to avoid an object on the road, or to make room for a truck which was attempting to pass on her left. Part of the Berry automobile went off the highway onto the shoulder. There is some indication that the road "drops off" between the roadway and the shoulder, but in any event, defendant Berry managed to turn back onto the roadway. Thereafter, for whatever reason, she lost all control over her vehicle, skidded 240 feet diagonally across the highway and down an embankment and finally struck a tree 42 feet west of the west edge of the highway. Plaintiff Exie Belle was injured. The extent and nature of her injuries are not in issue here.

On the appeal from the judgment on the main claim, the only issue presented is whether plaintiffs' proof so specifically and directly established the precise cause of the accident as to preclude application of the res ipsa loquitur doctrine. Defendant does not question the general rule that loss of control or failure to control the movement of an automobile so that it leaves the highway, strikes a fixed object and causes injury permits an inference of negligence on the part of the driver. Lindsey v. Williams, 260 S.W.2d 472, 474-475 (Mo.1953), cert. den. Williams v. Lindsey, 347 U.S. 904, 74 S.Ct. 428, 98 L.Ed. 1063 (1954); Tabler v. Perry, 337 Mo. 154, 165-167, 85 S.W.2d 471, 476-477 (1935); Silver v. Curtis, 490 S.W.2d 412, 414 (Mo.App.1972); Collins v. Nelson, 410 S.W.2d 570, 573 (Mo.App.1965); Wells v. Asher, 286 S.W.2d 567, 568 and cases cited n. 1 (Mo.App.1955). She says, rather, that the precise cause of the casualty was directly shown by plaintiffs' evidence, and of course if that is the case, the court erred in submitting the cause under the res ipsa loquitur doctrine. Williams v. St. Louis Public Service Co., 363 Mo. 625, 633, 253 S.W.2d 97, 101-102 (banc 1952); Rea v. St. Louis-San Francisco Ry. Co., 411 S.W.2d 96, 99 (Mo.1967). In this connection, however, two corollary rules should be noted. First, even though a plaintiff's evidence may tend to show the specific cause of the accident, he will nevertheless not lose the benefit of the res ipsa loquitur doctrine, nor be deprived of the right to rely on it in the submission of his case, if, after the evidence is in, the true cause is still left in doubt or is not clearly shown. White v. St. Louis Public Service Co., 364 Mo. 111, 118, 259 S.W.2d 795, 799 (banc 1953); Wells v. Asher, supra, 286 S.W.2d at 569 and cases collated n. 3. Second, a plaintiff may not be denied the benefit of the res ipsa loquitur doctrine merely because the evidence would support a verdict in his favor based upon specific negligence which could be inferred from the plaintiff's evidence without the aid of the res ipsa loquitur doctrine. White v. St. Louis Public Service Co., supra, 364 Mo. at 118, 259 S.W.2d at 799; Williams v. St. Louis Public Service Co., supra, 363 Mo. at 633, 253 S.W.2d at 101-102.

In particular, our attention is called to the following evidence: 1) plaintiffs' statement that after the Berry car left the road on the right side, it returned to the highway and went "back and forth" until it finally went off the road; 2) testimony which, defendant says, indicated that the car made a "zigzagging" movement and that its speed was accelerated just before it went off the pavement; 3) testimony which indicates that defendant failed to apply her brakes properly. Defendant also argues that the length of the skidmarks found at the scene establishes excessive speed as the specific cause of the accident. Additionally she maintains that parts of her pretrial deposition, introduced as admissions, establish that her loss of control and excessive speed were the specific causes of the accident.

We agree that plaintiffs' evidence shows beyond doubt that the Berry automobile went out of control. A showing of loss of control, however, is merely a showing of general, not specific negligence, see Myers v. Buchanan, 333 S.W.2d 18, 21 (Mo. banc 1960); McIntyre v. Whited, 440 S.W.2d 449, 451 (2, 3) (Mo.1969), and it is this very loss of control which gives rise to an inference of negligence here and permits plaintiffs to take advantage of the res ipsa loquitur doctrine. Tabler v. Perry, supra, 337 Mo. at 166-167, 85 S.W.2d at 477-478(11, 12). As for the testimony that defendant Berry's automobile went back and forth across the road before it left the highway, that it made a "zigzagging" movement and that defendant Berry accelerated her speed just before it plunged down the embankment, it seems to have been counsel's suggestion, rather than plaintiffs' positive testimony, that the Berry automobile made a "zigzagging" movement before it left the road. ¹ Plaintiffs' testimony that defendant increased her speed before she finally left the highway is really only an impression. ² We conclude that the evidence concerning the crisscrossing movement of the Berry automobile and the testimony that the speed of the vehicle "seemed" to increase before the car left the highway in no way tend to preclude a res ipsa loquitur submission. Plaintiff Exie Belle was testifying to conclusions and results, not as to specific facts, acts or conduct which produced those results, and her testimony was not such as to demonstrate the specific negligence which caused the accident. White v. St. Louis Public Service Co., supra, 364 Mo. at 118-119, 259 S.W.2d at 799(7).

Defendant's argument that the evidence shows her failure to apply the brakes caused the accident is simply confusing, so far as we are concerned. The testimony to which our attention is called again appeared upon plaintiffs' cross-examination by counsel for third-party defendant Scott. Counsel asked plaintiff if defendant Berry ever applied her brakes "from the time the automobile first left the highway until it came to a stop" and plaintiff answered "I don't know." Counsel then put the same question slightly differently, and plaintiff answered that she couldn't remember. To reiterate, the...